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RABBINIC CONTESTATIONS OF AUTHORITY

Christine Hayes*

INTRODUCTION
The following well-known text from the Babylonian Talmud
(redacted ca. 600 C.E.) has had an enormous influence on scholarly
accounts of the relation between divine authority and human authority
in talmudic rabbinic Judaism.
[Regarding a certain kind of oven, R. Eliezer rules that it is ritually
pure and the sages rule that it is ritually impure.]
It was taught: On that day, R. Eliezer responded with all possible
responses, but they did not accept them from him. He said to them,
If the law is as I say, let this carob [tree] prove it. The carob
uprooted itself from its place and went 100 cubitsand some say
400 cubits. They said to him, One does not bring proof from a
carob. The carob returned to its place.
He said to them, If the law is as I say, let the aqueduct prove it.
The water flowed backward. They said to him, One does not bring
proof from water. The water returned to its place.
He said to them, If it [the law] is as I say, let the walls of the
academy prove it. The walls of the academy inclined to fall. R.
Joshua rebuked them, When sages argue with one another about
matters of law, what is it to you? It was taught: They did not fall
out of respect for R. Joshua, and they did not straighten up out of
respect for R. Eliezer, and they are still inclined.
He said to them, If it is as I say, let it be proved from Heaven. A
heavenly voice went forth and said, What is your problem with R.
Eliezer, since the law is like him in every place?
R. Joshua stood up on his feet and said, It is not in Heaven
(Deuteronomy 30:12).
What is It is not in Heaven? R. Jeremiah said, We do not listen to
a heavenly voice, since you already gave it to us on Mt. Sinai and it
is written there, Incline after the majority (Exodus 23:2).
R. Nathan came upon Elijah. He said to him, What did the Holy
* Christine Hayes is the Robert F. and Patricia R. Weis Professor of Religious Studies in
Classical Judaica at Yale University. She is the author of two books and numerous articles in
biblical and talmudic studies.

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One do at the time [of R. Joshuas and R. Jeremiahs bold


statements]? [Elijah] said to him, He laughed and said, My
children have conquered me, my children have conquered me.1

In b. BM 59b, R. Eliezer locks horns with other rabbinic sages over


the purity status of a particular type of oven. After all arguments have
been exhausted, R. Eliezer resorts to miraculous feats to prove his
viewuprooting carob trees, causing rivers to run backwards and walls
to tumble, and ultimately calling upon the very heavens for support.
As Jeffrey Rubenstein notes, in this story the rabbis dramatically
assert not only that the majority has authority over the minority but that
the sages rulings have authority over God, the very author of the legal
system whose interpretation and application they are debating.2 No
miracle, not even a heavenly voice, can legitimate or ground the
authority of a legal opinion because, the rabbis insist, while the Torah
may be from Heaven it is not in Heaven any longer. Deuteronomy
30:12 is here construed as teaching that control over the interpretation
and administration of the Torah has been ceded by God to admittedly
fallible human beings who must follow proper legal processes of
argumentation and majority rule. God has been locked out of the
courtroom, the legislature and the academy. God is depicted as
celebrating this bold assertion of rabbinic legislative and interpretative
authority, even if it leads to substantive error and even if it is at the
expense of his own authority.
This passage, and a few others like it, certainly talk the talk and
modern scholars have waxed poetic about the innovative boldness of the
rabbis, their radical assertion of human reason and rabbinic prerogative
in the interpretation and administration of Gods lawthe Torah. Texts
like these, which are found more frequently in later Babylonian rabbinic
works (fifth to seventh century C.E.), are taken as an indication that
rabbinic Judaism grew immensely in strength and confidence as it
established itself over the centuries and further to the east.
Certainly b. BM 59b talks the talk, but the real question is: did the
rabbis walk the walk? Did they actually exercise their authority in bold,
even radical ways, or did they just talk about it? Have scholars been
misled by rabbinic rhetoric? I will argue that, contrary to scholarly
belief, an examination of actual cases in later and particularly
Babylonian talmudic sources, reveals an increasing discomfort with and
1 BABYLONIAN TALMUD, TRACTATE BABA MEZIA, 59b (referred to in the text as b. BM).
All translations are those of the author. Translations of the Babylonian Talmud are based on the
standard Vilna-Romm printed edition in consultation with manuscripts and/or early editions;
translations of the Palestinian Talmud are based on the Venice printed edition in consultation with
the Leiden manuscript; and translations of Mishnah are based on the first printed edition in
consultation with early manuscripts.
2 See the full and insightful discussion of this text in JEFFREY L. RUBENSTEIN, TALMUDIC
STORIES: NARRATIVE ART, COMPOSITION, AND CULTURE 34-63 (1999).

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reduced incidence of the radical exercise of rabbinic authority. While


early Palestinian sources depict rabbis exercising their authority in a
bold mannerwhether as interpreters, as legislators or as legal
scholarslater Babylonian authorities avoid such practices themselves
and even work to undermine the radical implications of the activities of
earlier authorities. Yet, paradoxically, it is the later Babylonian material
that contains the most grandiose and hyperbolic assertions of rabbinic
authoritycomparable to b. BM 59b.
Before I speculate as to what all this might mean I must build my
case by adducing a series of texts. Each of these texts deals with a
different aspect of rabbinic authority and each points to a chronological
and geographical shift in rabbinic attitudes towards certain bold
exercises of rabbinic authority: a shift from an earlier Palestinian
confidence to a later Babylonian anxiety. Of course, the details are a
little messier than this schematized portrayal, but we can nevertheless
speak of a clear trend. And that trend goes against the conventional
scholarly view of an increasingly confident and assertive rabbinic
authority in later, and especially Babylonian, talmudic times.
I have identified what I will call four indices of anxiety. In each
case, an early practice is either avoided, modified, or undermined in
later, especially Babylonian sources. In some cases, this retrenchment
is accompanied by a good deal of rhetoric that touts the very practice
that is no longer exercised. Our first index of anxiety involves the
exercise of rabbinic authority in matters of legislation. The point at
issue is whether the rabbis can issue a taqqanah (a ruling or law) that
uproots or contradicts Torah lawa radical exercise of rabbinic
authority.
I. TAQQANOT (RABBINIC RULINGS) THAT UPROOT
OR CONTRADICT TORAH LAW
In the rabbinic conception, there are several sources of law (i.e.,
sources for creating or finding law): Scripture and its interpretation,
legislation, custom, and reason. There is, however, only one source of
legal authority in Jewish law: Scripture as the expression of the divine
will. Thus, classic accounts of Jewish law describe a hierarchical
arrangement of the sources of law, since all of these sources are
subordinate to a single legal authority. The Hebrew Bible, or Torah,
enjoys a primary and supreme legal status in rabbinic Judaism. Laws
derived from the biblical text, through rabbinic interpretation (a process
known as midrash) are equally classified as deoraitaTorah law,
enjoying Toraitic authority. Another source of law is legislation.

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According to the Bible, new rulings may be rendered by the competent


authorities of the day understood in the Common Era to be the rabbis of
Palestine and Babylonia. These laws belong to the secondary category
of lawthey are derabbanan, rabbinic law rather than Torah law. In
the words of Menachem Elon, legislative enactments were understood
to be introducing something entirely new into the Halakhah
something not capable of being derived from any preexisting
authoritative legal precept.3 Legislation is thus a source of law but it is
not an independent source of legal authority. Its authority derives from
Scripture. Thus, it is in theory impossible for the rabbis to legislate in a
manner that contradicts or overturns provisions of the Torah. Such
laws, like laws passed by Congress that contradict the Constitution,
would presumably have no validity. Ideally, rabbinic enactments
function as a seyag leTorah: a fence around the Torah (an idea found
already in third century works) safeguarding and promoting the
observance of biblical laws through additional prohibitions or extended
requirements, and not, generally speaking, uprooting or contradicting
biblical laws.
So it is remarkable that in the first two centuries of the Common
Era in Palestine rabbinic authorities did on occasion pass laws that
overturned biblical law. To put it another way, unconstitutional
innovations were on occasion toleratedobviously a bold exercise of
rabbinic authority. I do not refer here to temporary emergency
legislation. Jewish law has long recognized the right of rabbis to
abrogate Torah law as a temporary measure in an emergency situation:
to save a life or prevent violation of a more serious Torah law. I refer
here to the right of rabbis to abrogate Torah law for the long term and
under relatively ordinary circumstances, perhaps because the law is
inconvenient, difficult, impracticable, or inappropriate in a changed
society. Only later, in the talmudic period, beginning in the third
century C.E. and developing further over time, do we detect in our texts
any real resistance to rabbinic laws that overturn or uproot biblical law.
The Palestinian Talmud (Yerushalmi = PT) allows some contradictory
taqqanot to stand, but in other cases we find a kind of legal revisionism,
explaining innovative laws as not in fact innovative at all. The sages of
the Babylonian Talmud (Bavli = BT) express an even greater anxiety.
They do not tolerate any contradictory taqqanot; instead they go to great
lengths to neutralize or deny the innovative or unconstitutional nature
of these laws.
Two brief examples will have to suffice. In the Mishnah
(compiled around 220 C.E. and containing the legal traditions and
3 2 Menachem Elon, Jewish Law: History, Sources, Principles 477 (Bernard Auerbach &
Melvin J. Sykes trans., 1994). For a full discussion of the nature, objectives and principles of
legislation by halakhic authorities, see id. at 494-544 and the sources cited and discussed there.

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controversies of Palestinian rabbinic sages) we learn of a taqqanah


attributed to Rabban Gamliel.4 Prior to Rabban Gamliels taqqanah,
even after a bill of divorce (a get) had been delivered to a woman, the
womans husband could convene a court wherever he was and annul it.
Rabban Gamliel enacted a taqqanah (hitqin) ordering that this should
not be done, to prevent the problem of the woman who does not know
that her husband has annulled the divorce document, who then assumes
she is legally divorced when she is not, and who then remarries, thereby
violating a prohibition of the Torah.
In the Palestinian Talmud (an extensive analysis and discussion of
much of the Mishnah compiled around 370 C.E. in Palestine), the
question arises of a husband who transgresses and convenes a court to
nullify the bill of divorce in the manner described above. Must the
annulment be recognized, since by Torah law he has the right to do this
and it is only the rabbis who have ruled against it? In essence, we have
a conflict of authority here. Which prevails: Torah law according to
which the husband can annul the bill of divorce even after its delivery or
rabbinic law according to which a husband cannot annul a bill of
divorce once delivered? Rabbi Judah asserts that Torah law prevails
while Rabbi Shimeon b. Gamliel asserts that rabbinic law prevails, and
it is Rabbi Shimeon b. Gamliels more radical view that is endorsed.
But what is most revealing for our purposes is the postscript that
explores the reason for Rabbi Judahs dissenting view.
But what is the reason behind the position of Rabbi [Judah that
Torah law should prevail? This is his reasoning:] According to
Torah law the husband may nullify the bill of divorce but [the rabbis]
ruled that he may not nullify it. Now do rabbinic rulings uproot a
rule of the Torah? (vedivrehen oqrin divre torah?!).5

The question appears to be rhetorical. Could the rabbis seriously


say that a rabbinic ruling can uproot, overturn, set aside, or contradict a
law of the Torah? To the readers surprise the Talmud responds by
asserting that, yes, the rabbis do indeed have the power to uproot a rule
of the Torah and another case is then cited in demonstration of that
assertion.6
4
5
6

MISHNAH, TRACTATE GITTIN, 4:2.


PALESTINIAN TALMUD, TRACTATE GITTIN, 4:2, 45c (emphasis added).
The Palestinian Talmuds approach in these cases contrasts sharply with the neutralization
approach of the Babylonian Talmud. Thus, b. Yev 90b, BABYLONIAN TALMUD, TRACTATE
YEVAMOT, 90b, deflects entirely the innovative nature of the taqqanah regarding the annulment
of the get by introducing a principle that justifies the special authority of the sages in questions of
marriage, enabling them retroactively to cancel the original betrothal. See the discussion of this
case in Y.D. Gilat, A Rabbinical Court May Decree the Abrogation of a Law of the Torah (Heb.),
in ANNUAL OF BAR-ILAN UNIVERSITY VII-VIII 117-32 (1970) (Heb. refers to works in Hebrew).
Pages 128 to 129 of the same article discuss the general phenomenon of neutralization: mishnayot
and early laws that abrogate Torah law are later explicated in a manner that restricts their scope

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Olives [may be separated as heave offering] for olive oil and grapes
for wine [a citation of Mishnah Terumot 1:4]. Is it not Torah law
that one may separate as heave offering [the one for the other], but
the sages ruled to the contrary, that one may not separate olives as
heave offering for olive oil or grapes as heave offering for wine, in
order to prevent the theft [of valuable goodswine and oil] from the
priests. And not only this but they also ruled that if one transgressed
and separated [olives or grapes], that which he has designated as
heave offering is not heave offering.7

Rabbi Judah is defeated. On occasion, taqqanot do uproot or contradict


Torah law.
Nevertheless, it seems that at a certain point anxiety over such
taqqanot led to their revision. A case in point is the prozbul of Hillel.
The Mishnah tells us that Hillel (early first century C.E.) instituted the
prozbul. While there is some dispute over the way in which the prozbul
actually worked, in essence it was a transaction with the court that
enabled one to circumvent the release of debts commanded by the Torah
to take place in the sabbatical year.8 Hillels prozbul has often been
labeled the most explicit example of a rabbinic decree that uproots or
overturns a provision of the Torah. Where the Bible prohibits the
collection of debts in the seventh year, Hillels prozbul makes it
possible for debts to be preserved and ultimately collected.
In both the Palestinian Talmud and the Babylonian Talmud (an
extensive analysis and discussion of much of the Mishnah compiled
around 600 C.E. in Babylonia), Hillels prozbul is subjected to a
revisionist strategy that undercuts its radical implications. Later
and application (e.g., the principle of hefqer bet din hefqer to justify rabbinic authority in cases
involving property). The principle invoked in b. Yev 90b is one such neutralizing strategy.
7 PALESTINIAN TALMUD, TRACTATE GITTIN, 4:2, 45c (emphasis added). The case in the
Babylonian Talmud that most closely parallels the heave offering case of the PT is found in the
same sugya as the case of the annulled get. BABYLONIAN TALMUD, TRACTATE YEVAMOT, 89a90b. Although the Babylonian Talmud discusses m. Ter 2:2, MISHNAH, TRACTATE TERUMOT,
2:2, regarding the separation of ritually impure produce for pure produce (rather than m. 1:4the
separation of olives and grapes for oil and wine), the same theoretical question is raised. R. Hisda
asserts that in the ex post facto case, undertaken willfully, the heave offering is not heave
offering. Rabbah objects is it possible that there is something that by Torah law is heave
offering but the rabbis . . . declare it to be not heave offering? Can a court make an enactment
that uproots a law of the Torah? Insofar as R. Hisda fails to find an example of a rabbinic law
that uproots Torah law, we can only surmise that the Babylonian Talmuds answer to this
question is negative (or more precisely, a court may uproot a law of the Torah only temporarily
and under special emergency conditions). Thus, where the Palestinian Talmud allows
unconditionally for the possibility that rabbinic law abrogates Torah law, the Babylonian Talmud
does not.
8 Note that we are not here concerned with the details of the prozbuls operation or historical
questions of its rise, use and application. For this information see, e.g., Solomon Zeitlin, Prosbol:
A Study in Tannaitic Jurisprudence (Heb.), 37 JEWISH Q. REV. 341 (1947); Pinhas Shiffman,
Prozbul and Legal Fiction, SVARA, Winter 1991, at 63. What concerns us is the amoraic
perception of this law and the source of its authority to set aside the biblical requirement of a
sabbatical release of debts.

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anonymous strata of both Talmuds explicitly raise and reject the


possibility that Hillels ruling uproots or contradicts Torah law. In the
Palestinian Talmud, R. Huna asks directly: has Hillel created an
ordinance that contradicts biblical law (veHillel matqin al devar
Torah)?9 And in the Babylonian Talmud, we find the anonymous
question: Is it possible that where according to the Torah the seventh
year releases, Hillel should ordain that it should not release? Both
Talmuds resolve the question the same way. Through some standard
rabbinic exegesis, they conclude that the biblical text envisages two
releases that must operate in tandem: the release of debts in the seventh
year, and the release of land in the fiftieth or Jubilee year. After the
Roman conquest of Palestine in the first century B.C.E., Jews lost the
power or authority to observe the Jubilee year return of land. Since
rabbinic interpretation of the Bible yields the principle that the Jubilee
year release of land and the seventh year release of debts must operate
in tandem or not at all, and since Jews were not at the time of Hillel in a
position to observe the Jubilee year release of land, they were therefore
not obligated by the Torah to observe the seventh year release of
9 For al in the sense of contradicting/uprooting (and not merely in addition to or
beyond) compare the phrase hitnah al mah shekatuv batorah in m. BB 8:5, MISHNAH,
TRACTATE BABA BATHRA, 8:5, which can only be translated as he made a condition
contradicting/contrary to what is written in the Torah. My translation of the prozbul passage is
in line with the interpretation of traditional commentators (see Qorban ha-Edah to p. Git 21b who
paraphrases R. Hunas question as follows: It is a difficulty: How could Hillel make an
enactment not to release and so uproot [aqar] biblical law? and Pene Moshe to p. Git 21b who
paraphrases the question this way: and if it is by Torah law that the seventh year releases then
can Hillel make an enactment to transgress [laavor al] Torah Law?). See PALESTINIAN
TALMUD, TRACTATE GITTIN, 21b. That this is the proper understanding of al in the phrase
lehatqin al devar Torah is born out by similar talmudic passages which utilize other, more
explicit phrases for the same phenomenon. First and foremost is the parallel talmudic passage of
the Babylonian Talmud (b. Git 36a), in which the same legal question is phrased as follows: is it
possible that there be something [a debt] that according to Torah law is released in the seventh
year but Hillel enacted is not released? BABYLONIAN TALMUD, TRACTATE GITTIN, 36a (umi
ikka midi demideorayta meshameta sheviit vehitqin Hillel dela meshameta?). In other words, is
it possible that Hillel enacted a ruling that contradicts the law of the Torah? That this is the sense
of the Babylonian Talmuds question is indicated by b. Yev 89b where an identically phrased
question (is there something that by Torah law is X but . . . the rabbis declare it to be not-X?) is
immediately rephrased in the following general terms: can a court make an enactment that
uproots (laaqor) a law of the Torah? BABYLONIAN TALMUD, TRACTATE YEVAMOT, 89b. B.
Yev 89b is explicit: at issue are rabbinic rulings that uproot or contradict Torah law. Since b. Yev
89b employs the same formula as b. Git 36a (is there something that by Torah law is X but . . .
the rabbis declare it to be not-X?) and b. Git 36a poses the same legal question as is posed in the
Palestinian Talmuds parallel, we may conclude that the Palestinian Talmuds lehatqin al devar
Torah means to enact a taqqanah that contradicts or uproots biblical law. Other discussions in
both Talmuds that struggle with the same phenomenona rabbinic enactment that contradicts
biblical lawuse even more explicit language (e.g., vedivrehen oqrin divre torah? which
translates to can the rabbis uproot a rule of the Torah?) leaving little doubt as to the meaning of
the phrase (hitqin al) employed here. See the discussion, infra, of PALESTINIAN TALMUD,
TRACTATE BETSAH, 2:1, 61a-b and PALESTINIAN TALMUD, TRACTATE GITTIN, 4:2, 45c.

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debts.10 Then why were people observing it? Because even though the
Torah no longer strictly required it, rabbis prior to Hillel had decided to
extend its observance (and it is certainly within the bounds of rabbinic
authority to add to the obligations of the Torah, to create a seyag leTorah, not uprooting it but extending it). Thus, Hillels institution of
the prozbul merely set aside a rabbinic requirement and, in so doing,
actually restored the exemption envisaged by the biblical text. Hillel
was no radical innovator. On the contrary, according to the Palestinian
Talmuds revisionist account, he was a conservative, returning the law
to its proper biblical condition after earlier unnamed and undocumented
rabbis had extended its demands (properly enough) as a seyag leTorah.11 It was this rabbinically extended obligation that Hillel
overturned.
This kind of revisionismclearly an artificial construction in
which innovation is recast as restorationoccurs occasionally in the
Palestinian Talmud; however, in at least ten cases in which a rabbinic
taqqanah is said to contradict Torah law, the contradiction is tolerated.
By contrast, later strata of the Babylonian Talmud adopt this and other
strategies in order to redescribe all contradictory taqqanot as not in fact
contradictory of biblical law.
II. CREATIVE EXEGESIS OF SCRIPTURE
The rabbis were not simply legislators; they were also the
authoritative interpreters of scriptural law. The authority to interpret
Scripture can be utilized in more or less radical ways and the rabbis of
the talmudic period have earned some notoriety for the unrestrained and
convoluted exegesis by which almost anything was read out of, or
perhaps into, the biblical text. For some time, scholars have tended
toward the view that the rabbis simply perceived no difference between
10 In short, the very creative midrashic argument is that the seventh year release of debts and
the fiftieth year release of land operate in tandem or not at all. If Jews are not in a position to
observe the fiftieth year release of land then neither are they obligated to observe the seventh year
release of debts.
11 The Babylonian Talmud contains essentially nothing new in its discussion of the prozbul of
Hillel. The same revisionist strategy is adopted in the Babylonian Talmuds sugya and it is
motivated by the same concern, as we read in b. Git 36a: is it possible that there be something [a
debt] that according to Torah law is released in the seventh year but Hillel enacted is not
released . . . ? BABYLONIAN TALMUD, TRACTATE GITTIN, 36a (umi ikka midi demideorayta
meshameta sheviit vehitqin Hillel demeshameta?). Nevertheless, other scholars have read the
Babylonian Talmud as taking a radically different approach that emphasizes innovative boldness
and rabbinic prerogatives vis--vis the Torah. For a fuller discussion and refutation of this
position, see Christine Hayes, The Abrogation of Torah Law: Rabbinic Taqqanah and Praetorian
Edict, in THE TALMUD YERUSHALMI AND GRAECO-ROMAN CULTURE 643, 643-74 (Peter Schfer
ed., 1998) ( see especially 646-50 and notes).

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good contextual interpretation and wildly creative midrashic


interpretation; that they were not bothered by the gap between the
contextual meaning of a verse and its midrashic exposition. This lack of
self-consciousness, it is argued, is itself a function of the rabbinic view
of Scripture as omnisignificantas so suffused with meaning that every
aspect of it can and must be interpreted.
According to conventional accounts, anxiety over midrashic excess
arose only in the post-talmudic Jewish world with the emergence of new
textual assumptions and new standards of textual meaning and linguistic
significance in the tenth to thirteenth century.12 However, I have argued
elsewhere that the rabbis did indeed perceive the difference between
contextual and fully midrashic methods of interpretation, that they did
indeed feel some anxiety over extreme interpretive strategies, and that
this anxiety is increasingly pronounced in later talmudic, and especially
Babylonian, sources.13 An exciting new book by Azzan Yadin supports
this claim by tracing this anxiety to a very early period in Jewish
intellectual history.14 Specifically, Yadin argues that while many
rabbinic texts support a principle of biblical omnisignificance, not all
do. At an early stage, the midrashic works associated with R. Yishmael
explicitly reject, in both word and deed, the idea that all elements of
Scripture are hermeneutically marked and thus interpretable. I would
argue that this early view grew in strength through the talmudic period
until eventually laws were no longer generated by the kind of creative
exegesis that served as a source of law at an earlier time. In practice,
later Babylonian authorities eschewed the radical midrashic techniques
of past rabbis, even as they praised their interpretive pyrotechnics.
There are several texts in which the anxiety generated by midrashic
excess is thematized. R. Akiva, a second century Palestinian sage and
the rabbinic poster child of unrestrained exegesis, is often a central
protagonist in these texts. In the famous late Babylonian story of R.
Akivas schoolhouse, Moses himself cannot follow the complex
midrashic expositions by which R. Akiva gives various laws a scriptural
derivation.
Moses is relieved, finally, when R. Akiva admits
concerning one law that it cannot be derived from Scripture.
Moses went and sat down behind eight rows [in R. Akivas
schoolhouse, with the least skilled students], but he could not
12 Some version of this view can be found in DAVID WEISS HALIVNI, PESHAT AND DERASH:
PLAIN AND APPLIED MEANING IN RABBINIC EXEGESIS vi, 20, 34 (1991); JAY HARRIS, HOW DO
WE KNOW THIS? MIDRASH AND THE FRAGMENTATION OF MODERN JUDAISM 6, 85, 252 (1995).
13 Christine E. Hayes, Displaced Self-Perceptions: The Deployment of Minim and Romans in
b. Sanhedrin 90b-91a, in RELIGIOUS AND ETHNIC COMMUNITIES IN LATER ROMAN PALESTINE
249 (Hayim Lapin ed., 1998).
14 AZZAN YADIN, SCRIPTURE AS LOGOS: RABBI ISHMAEL AND THE ORIGINS OF MIDRASH
(2004) (see especially chapter three).

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understand what they were saying. His strength left him. But when
they came to a certain topic and the disciples said to him [to R.
Akiva], Rabbi, whence do you know it? he replied to them, It is a
law given to Moses at Sinai [a halakhah le-Moshe mi-Sinai]. And
Moses was comforted.15

This law, R. Akiva states, is simply a halakhah le-Moshe mi-Sinaia


law revealed orally to Moses alongside the written Torah, a law that by
definition cannot be derived from Scripture and must simply be
accepted as transmitted orally from Moses.
In another passage from the Babylonian Talmud (b. Men 89a / b.
Nid 72b),16 the assertion that a particular law is a halakhah le-Moshe
mi-Sinai counters the midrashic zeal of R. Akiva who presents a
complex and convoluted exegesis based on the Scriptural words with
oil. R. Elazar b. Azariah is said to respond to this display of midrashic
virtuosity with the contemptuous remark:
Akiva, even if you repeat the words with oil the whole day long I
shall not listen to you; rather, the half log of oil of the thank offering,
the quarter log of oil of the nazirite and the eleven days between
menstrual periods are [each a] halakhah le-Moshe mi-Sinai.17

In this and many other texts, the contrived and counterintuitive


interpretations of the overzealous sage are depicted as evoking
incomprehension or incredulity among non-rabbis and rabbis alike.
These texts give voice to the anxiety that one can carry midrashic
exegesis too far and in the process undermine rabbinic credibility and
by extension rabbinic authority. Nevertheless, these expressions of
doubt and anxiety appear alongside hyperbolic praise of the great
midrashic masters of the past and their extreme methodsindicating a
basic rabbinic ambivalence.
III. LAW AND TRUTH: JUDICIAL OR LEGISLATIVE ERROR
There are other practices that seem to have been accepted at an
earlier period, but then to have inspired anxiety later, and eventually to
have fallen from favor. Our third index of anxiety concerns shifting
attitudes towards legislative or judicial error as we shall see in the
following case. The Mishnah (m. Rosh HaShanah 2:8-9)18 describes
two incidents purportedly occurring in the late first and early second
century C.E. in which witnesses offer clearly erroneous testimony
regarding the phases of the moon (the calendar at this time was
15
16
17
18

BABYLONIAN TALMUD, TRACTATE MENAHOTH, 29b.


Id. at 89a; BABYLONIAN TALMUD, TRACTATE NIDDAH, 72b.
BABYLONIAN TALMUD, TRACTATE MENAHOTH, 89a.
MISHNAH, TRACTATE ROSH HASHANAH, 2:8-9.

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determined on the basis of eyewitness testimony concerning the


behavior of the moon). In both cases, R. Gamliel accepts the testimony
and establishes the calendar over the objections of his angered
colleagues. A reconciliation is brought about by R. Akiva who argues
that the rabbinic power to determine the calendar is biblically grounded,
and that for the sake of the stability of the system the ruling of the court
must be accepted even if in error. In short, this Mishnah upholds the
power of halakhic authorities to make a legal determination even when
that determination is contradicted by physical reality. To reverse
decisions because they are out of step with empirical evidence or
physical reality is explicitly rejected in this Mishnah as posing a threat
to rabbinic authority ([I]f we question the court of R. Gamliel then we
must question every court that has existed from the time of Moses until
now!).19 But in the later Talmuds, the opposite intuition emerges. In
the later Talmuds, the legal declaration known to be mistaken or false
(and not its retraction) is perceived as a threat to rabbinic authority.
In the Palestinian Talmud, R. Hiyya bar Abba (late third cenutry
C.E. sage) articulates the critically important question: how could R.
Gamliel have seen fit to accept testimony that is palpably false? The
answer: the testimony may not have been false, at least not by Rabban
Gamliels lights. R. Hiyya bar Abba said: Why did R. Gamliel accept
them? Because he had a tradition from his fathers that sometimes it [the
moon] travels by a short route, and sometimes by a long route.20
By attributing to R. Gamliel an old family tradition that the moon
sometimes completes its circuit by a shorter path, R. Hiyya b. Abba
undercuts the Mishnahs portrait of Rabban Gamliel as acting boldly.
R. Gamliel does not consciously promulgate and uphold a legal
determination based on objectively false evidence and the Mishnah does
not depict a contest between law and fact. Rather, the Mishnah is now
understood as depicting a contest between competing versions of the
facts. Rabban Gamliel believed the evidence to be truthful and, if his
family tradition is correct, it may indeed have been truthful. His
conscious error turns out to be no error at all, but a wise decision
based on little known facts about the behavior of the moon. The
Babylonian Talmud also domesticates Rabban Gamliels bold behavior
by suggesting a reality-based explanation for his rulings, but at the same
time it cites traditions upholding the power and authority of rabbinic
sages to make calendrical determinations that run counter to
astronomical realitya truly ambivalent text.21
19
20
21

PALESTINIAN TALMUD, TRACTATE ROSH HASHANAH, 2:8-9.


Id. at 2:8-9, 58b.
For a fuller discussion of this and similar texts, see Christine Hayes, Authority and Anxiety
in the Talmuds: From Legal Fiction to Legal Fact, in 1 JEWISH RELIGIOUS LEADERSHIP: IMAGE

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IV. LAW AND TRUTH: LEGAL FICTIONS


Our fourth index of anxiety concerns a phenomenon closely allied
to error, and that is legal fiction. A legal fiction is a statement
propounded with a complete or partial consciousness of its falsity, but
accepted because of its utility. Through legal fictions one can alter or
extend the law while preserving the appearance of traditionalism.22
Leib Moscovitz notes that legal fictions are barely attested (if at
all) in any ancient legal system before the Roman period and only first
emerge and gain wide acceptance among the Romans and the rabbis.23
Nevertheless, despite the widespread presence of legal fictions in the
talmudic corpus, there is good evidence that: (1) some rabbis were
discomfited by the gap between a legal fiction and reality, and (2) this
anxiety lies behind efforts by later talmudic authorities either to
eliminate or to provide more credible, realist-based rationalizations for
some of the anxiety-inducing legal fictions of earlier authorities.24
A single example will have to suffice.25
1. A woman whose husband had gone to a country beyond the sea
and they came and said to her your husband is dead and she
married, mustif her husband subsequently returnedleave the one
as well as the other and she also requires a letter of divorce from the
one as well as the other. [The Mishnah continues with a long list of
the marital rights and privileges that she has lost vis--vis both
husbands.]
2. If she married without authorization she may return to him [the

AND REALITY 127 (Jack Wertheimer ed., 2004).


22 For a full discussion of legal fictions see

the classic work of LON L. FULLER, LEGAL


FICTIONS (1967).
23 Leib Moscovitz, Legal Fictions in Rabbinic Law and Roman Law: Some Comparative
Observations, in RABBINIC LAW IN ITS ROMAN AND NEAR EASTERN CONTEXT 105, 111
(Catherine Hezser ed., 2003). According to Moscovitz, typologically similar fictions in both
systems generally seem to stem from essentially the same period. . . . [T]he development of
similar types of fictions might be largely contemporaneous in Roman and rabbinic law. Id. at
119.
24 For a discussion of realist and non-realist views of the law, see Daniel R. Schwartz, Law
and Truth: On Qumran-Sadducean and Rabbinic Views of Law, in THE DEAD SEA SCROLLS:
FORTY YEARS OF RESEARCH 229, 229-40 (Devorah Dimant & Uriel Rappaport eds., 1992).
Important objections to Schwartzs article and terminological clarifications may be found in
Jeffrey L. Rubenstein, Nominalism and Realism in Qumranic and Rabbinic Law: A
Reassessment, in 6 DEAD SEA DISCOVERIES 157, 157-83 (1999).
25 The sugya from which this example is taken has been definitively analyzed in Shamma
Friedman, A Critical Study of Yevamot X with a Methodological Introduction (Heb.), in TEXTS
AND STUDIES, ANALECTA JUDAICA I, at 275 (H.Z. Dimitrovksky ed., 1977). I rely (for the most
part) on Friedmans source-critical analysis of these sugyot as a convenient basis for my own
discussion of rabbinic discomfort over, and elimination of, a radical legal fiction.

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first husband].26

This Mishnah describes the case of a woman whose husband has


gone abroad and is subsequently reported dead. She remarries only to
have her first husband return. If the womans remarriage is formally
authorized by the court (this condition is implied by its explicit absence
in clause number two) then the courts ruling stands as a valid ruling
and the marriage stands as a valid marriage, despite the later emergence
of facts to the contrary.27 The result is that should the husband return,
the woman will find herself in the situation of being married to two men
at once, which is prohibited by Torah law, and since each prohibits the
other she must leave both and loses all marital privileges pertaining to
both. However, if the court did not declare the woman permitted and
formally authorize her second marriage (clause number two), the second
union lacks legality and is automatically null and void upon the return
of the first husband. The woman is married to only one manher first
husbandand returns to him.
The Mishnah is making the important claim that a legal
determination by the court stands even in the face of clear and
undeniable facts to the contrary that were unknown at the time of the
courts ruling. True, the courts power does not extend to nullifying the
first marriage completely and it is this that creates the problem of two
simultaneously valid marriages. Nevertheless, the ruling is a bold
assertion of the power of legal determinations. The fuller context
makes it clear that the rabbis themselves understand it to be bold, but
necessary in order to assist women trapped in marriages to husbands
who may well have abandoned them.
In the Palestinian Talmud, the early Palestinian sage Rav
radicalizes the law even further, by negating the first husbands claims
entirely and allowing the woman to remain in the second marriage even
upon the first husbands return. He does this by means of a legal
fiction.
R. Nahman bar Yaakov (late third century C.E.) in the name of Rav
(early third century C.E.): if she remarries on the basis of two
witnesses, then even if he [the first husband] should come, they say
to him you are not he [i.e., we do not legally recognize you].28

If a woman remarries on the basis of proper testimony and her


husband returns, the court can avail itself of a legal fiction, declaring
26
27

MISHNAH, TRACTATE YEVAMOT, 10:1 (ca. 220 C.E.).


That this is not the only way to read the Mishnah, as argued in DAVID WEISS HALIVNI,
SOURCES AND TRADITIONS: A SOURCE CRITICAL COMMENTARY ON SEDER NASHIM (1968), but
is interesting and important for understanding the Mishnah on its own terms, but not relevant to
our discussion of the views found in the later talmudic sources which do indeed read the Mishnah
as described above.
28 PALESTINIAN TALMUD, TRACTATE YEVAMOT, 15:4, 15a.

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you are not he regardless of the actual facts of the matter. The fiction
you are not he expresses the courts right to refuse the returning
husbands claim by treating him as if he were not himself. As Shamma
Friedman points out, the halakhah of Rav is a daring halakhah, in
which a legal fiction trumps reality entirely.29
Ravs legal fiction found a mixed reception. His halakhah is
accepted though grudgingly in later Palestine. A Palestinian sage, R.
Immi, reluctantly rules in line with Ravs halakhah but underscores its
moral defect: he tells the second husband that his children by the
woman will be illegitimate.
A case came before R. Immi (late third century C.E.). He said to
[the second husband after the first had come back], Yes, it is true
that she is permitted to you. But you should know that your children
[by her] will be bastards [illegitimate] in the sight of heaven [even if
not by the laws of man]. And R. Zeira praised him for laying out
the results of the matter with clarity.30

Note this dichotomy between the laws of heaven (which are true
or correct) and the rule of Rav, which though valid is not true.
Interestingly, the Palestinian Talmud describes the situation among their
Babylonian brethren as even more fraught. There in Babylonia, it is
reported, Ravs disciples had to use force to compel others to accept
their masters ruling.
A case came before the rabbis over there (in Babylonia). They said
to him. You are not he [i.e., we do not legally recognize you].
Abba bar Ba (early Babylonian) got up and whispered in his [the
second husbands] ear: By your life! Give her a divorce by reason
of the doubt [as to whether or not he is the original husband, and so
protect her from a simultaneous marriage]. The disciples of Rav
got up and hit him. . . .
Shmuel said: I was there . . . my father [Abba bar Ba] was flogged
and accepted it [i.e., Ravs ruling].31

Despite the controversy and the heated objections by other rabbis,


Ravs legal fiction is implemented according to the Palestinian Talmud,
and practical decisions are rendered in accordance with it in both
Palestine and Babylonia. But the Babylonian Talmud gives a different
impression.32 In the Babylonian Talmud, Ravs legal fiction is treated
with great disdain and is ultimately dismantled by being converted into
fact.
Rav said: This [ruling, that she must divorce both husbands] was
taught in regard to a woman who married on the evidence of a single

29
30
31
32

Friedman, supra note 25, at 332.


PALESTINIAN TALMUD, TRACTATE YEVAMOT, 15:4, 15a.
Id.
BABYLONIAN TALMUD, TRACTATE YEVAMOT, 88a.

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witness, but if she married on the evidence of two witnesses, she


need not leave [the second husband].
In the West (i.e., Palestine) they laughed at him: Her husband
comes, and there he stands, and you say, She need not leave!?
Ravs law applies only where she [really] does not know (recognize)
him.33

The Babylonian Talmud reports an anonymous comment that


highlights the absurdity of Ravs teaching. Ravs teaching, it is
asserted, inspired ridicule even in Palestine and was mocked: How can
you say she need not leave the second husband, when her first husband
stands before you alive and well! The Babylonian Talmud assumes
that no one in his right mind would utter such a teaching because it is
too absurd, too incredible. So what did Rav really mean? He must have
been talking about a case in which the woman really does not recognize
the man who claims to be her first husband.
Observe what has happened to Ravs legal fiction. The phrase
you are not he has been converted from a fiction employed by the
court into a factual condition that determines the application of Ravs
law. In other words, when Rav said that the woman stays with the
second husband, he was speaking only about cases in which the woman
looks at the man who claims to be her first husband and says, you are
not he; that is, cases in which she really does not recognize her first
husband. But in all other cases, the Talmud claims, even Rav would
agree that the law is as the Mishnah says and, therefore, she must
divorce both husbands. Ravs effort to provide a mechanism that would
free the woman from the first marriage entirely through a legal fiction is
defeated. His rule is interpreted as referring to cases of real, not fictive,
non-recognition by the wife. And, in a lengthy further discussion,
Ravs law is limited even more narrowly to a highly circumscribed and,
one may say, unlikely set of circumstances.
The Babylonian Talmuds treatment of Ravs radical legal fiction
would appear to be symptomatic of anxiety over uses of rabbinic
authority that strain credulity because they are out of step with
commonsense notions of truth and reality. This hypothesis gains in
probability when we realize that in this very chapter of the Talmud a
great deal of space is given over to discussion of the limits of rabbinic
authority.34 Ironically this passage is often cited as the locus classicus
for the bold assertion of rabbinic authority. But close examination
reveals that this late Babylonian discussion spares no effort in recasting
earlier bold exercises of rabbinic authority as conservative and
legitimate (or emergency) uses of that authority.
33
34

Id. at 88a.
Id. at 89a-90b.

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CONCLUSION
We have seen that later (fourth century C.E. on), especially
Babylonian, sources exhibit a pronounced anxiety over bold exercises
of rabbinic authority of an earlier period (pre-fourth century) and tend to
eschew interpretative, legislative, and judicial strategies that overstep
the perceived bounds of rabbinic authority or threaten to undermine
confidence in rabbinic authority because they strain credulity. These
include the issuance of rabbinic legislation contrary to Torah law,
extreme forms of Scriptural exegesis, rulings based on conscious error,
and legal fictions. We are speaking about a tendency, not a full-blown
about-face. This growing anxiety had paradoxical results: while we
witness a reduction in the bold exercises of rabbinic authority in
practice, we see the retention and even expansion of grandiose
assertions of rabbinic authority in aggadic passages. How are we to
explain this?
There is a better way to formulate the question. In truth, it is not
the later period that requires explanation as much as the earlier period.
For as I will argue now, it is the early and primarily Palestinian
tolerance for radical exercises of rabbinic authority that is remarkable.
The explanation for the early Palestinian attitude may be found in the
Roman legal environment to which the Palestinians were exposed.
Certain fundamental differences between the Roman and Jewish
legal systems may illuminate the developments I have described. The
Roman legal system differed from the Jewish legal system in two ways
that are of great importance to us. First, the Roman legal system was
not hierarchical. It did not posit one single source of legal authority.
The Roman legal system comprised several independent and equally
primary sources of law and legal authority: legislation, particularly the
founding document known as the Twelve Tables and subsequent
enactments of the comitia; a senatus consultum, a resolution of the
senate which at a certain point in Roman history acquired the force of
law; edicendi, or edicts of the magistrates; and there are others. Being
independent, these sources might challenge or be challenged by one
another. Of particular interest are the edicts of magistrates, particularly
those of a magistrate known as the praetor (established 367 B.C.E.).35
35 For details of the establishment of the praetorship, see H. F. JOLOWICZ & BARRY
NICHOLAS, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN LAW 16, 48-49 (3d ed. 1972).
The praetors legal function was the administration of the civil process (iurisdictio) in Rome.
About 242 B.C.E. a second praetor (the praetor peregrinus as opposed to the praetor urbanus)
was added to control litigation between foreigners. For the exact relationship between, and the
respective responsibilities of, the urban and peregrine praetor, see ALAN WATSON, LAW MAKING
IN THE LATER ROMAN REPUBLIC 63-87 (1974); David Daube, The Peregrine Praetor, 41 J.
ROMAN STUD. 66, 66-70 (1951). The praetor was always given a definite sphere (provincia) in
which to exercise his power. In the second century B.C.E. these provincia comprised two

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While the praetors edict could not abolish clauses of the old civil
lawsthe latters terms were still there for all to seeit could render
provisions of the civil law inoperative. It could supplant them in
practice by stating that certain laws would not be enforced and certain
remedies would not be granted, regardless of what was written in the
civil law.
In 130 C.E., Hadrian consolidated all the edicts of past praetors
into a code given the force of law, the Edictum Perpetuum, containing
about two hundred separate provisions published regularly and so
persisting as a functioning body of law alongside the old civil law,
whose provisions it occasionally supplanted.36 I have argued at length
elsewhere that there are many formal, terminological, and substantive
parallels between the rabbinic taqqanah and the praetorian edict.37 It
may be that taqqanot that improved, repaired, and on occasion
overturned Torah law arose and were largely tolerated in Roman
Palestine in the first three centuries of the Common Era, because of the
highly visible and parallel phenomenon in the surrounding Roman legal
culture, namely, edicts designed to improve, repair, and on occasion
overturn provisions of the civil law.38 But the example of Roman law
did not succeed in completely dispelling an aversion to taqqanot that
contradict Torah law. As it became an accepted principle that rabbinic
enactments had no authority independent of that ceded to them by the
written Torah, it was more difficult to accept rabbinic enactments that
jurisdictional spheres of the city and four governorships abroad. Following the constitutional
reforms of Sulla, a total of eight praetors served a year in Rome (in various capacities) before
proceeding to governorships of provinces abroad. See JOLOWICZ & NICHOLAS, supra, at 49.
36 J.A.C. THOMAS, TEXTBOOK OF ROMAN LAW 35 (1976); ALAN WATSON, SOURCES OF
LAW, LEGAL CHANGE, AND AMBIGUITY 22 (1984); see O. LENEL, DAS EDICTUM PERPETUUM.
EIN VERSUCH ZU SEINER WIEDERHERSTELLUNG (photo. reprint of Leipzig: B. Tauchnitz 1927)
(1956).
37 See the discussion of these suggestive parallels in Hayes, supra note 11, at 668-69. While
we can never be completely sure that the rabbinic taqqanah was influenced by the Roman edict,
there are a number of indications that such influence was likely. There is good evidence that the
rabbis had more than a passing familiarity with the Roman edict which was so important in
Roman provincial administration. The Latin term edictum is translated in Greek as diatagma or
prostagma and both terms appear in various forms in rabbinic texts. See SAMUEL KRAUSS,
GRIECHISCHE UND LATEINISCHE LEHNWRTER IM TALMUD, MIDRASCH UND TARGUM 196, 483
(1964); DANIEL SPERBER, A DICTIONARY OF GREEK AND LATIN LEGAL TERMS IN RABBINIC
LITERATURE 79-81 (1984); Saul Lieberman, Roman Legal Institutions in Early Rabbinics and in
the Acta Martyrum, 35 JEWISH Q. REV. 1, 6-7 (1944).
38 Several Palestinian traditions suggest that Palestinian rabbis were familiar with the
standard form, the manner of publication, and other specific features of the Roman edict. For a
complete list of the relevant rabbinic sources see the Aruch, KRAUSS, supra note 37. On the
phrase paras diatagma (translated as: promulgated an edict) see Lieberman, supra note 37, at
6-7; Louis Finkelstein, The Meaning of the Word Paras . . . , 32 JEWISH Q. REV. 387 n.1 (1942).
Rabbinic texts describe edicts becoming law after being displayed in the public place of the city
and contain vivid accounts of the attitude of the people upon reading the edicts of the melekh.
See citations in Lieberman, supra note 37; SPERBER, supra note 37.

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abrogated provisions of the primary legislation upon which their own


authority depended. Thus, as time passed, an intolerance of enactments
that contradict provisions of Torah law began to (re)assert itself, as
reflected in the handful of revisionist accounts found in the fourth
century Palestinian Talmud.39
Babylonia was entirely outside the sphere of the Roman legal
system, and the Babylonian rabbis did not have before them the living
example of a respected legal tradition in which enactments by certain
authorities were commonly held to contradict and render inoperative
provisions of a basic civil law. Perhaps it is not surprising then that the
Babylonians rabbis found taqqanot that contradict biblical law to be
completely intolerable and adopted a revisionist approach to each and
every one: subordinating the voice of the rabbis to the voice of
Scripture.
The idea of subordination, an idea compatible with (or better,
necessary in) a hierarchical system of law in which there is one ultimate
source of authority, may explain the trend away from excessively
creative midrash.
Interpretations that feature a heavy dose of
interpretive intervention generate uneasiness because the voice of
Scripture appears to be illegitimately subordinated to the voice of the
human interpreter. This uneasiness existed even in early Palestine, but
became more pronounced in later Babylonia where the fundamentally
hierarchical nature of the Jewish legal system is more strongly asserted.
The second fundamental difference between Roman and Jewish
law is that Roman law is secular while Jewish law claims a divine
origin. While inelegant and bold legal fictions can arouse opposition in
any legal system, they may appear all the more intolerable in a legal
system that purports to be divine in origin. If the divine origin of the
law is understood to ensure its freedom from falsehood, then legal
fictions and legal determinations based on blatant falsehoods may
engender greater anxiety than they would in a secular legal system.
Almost by definition, an erroneous or contrary-to-fact ruling ceases to
be Gods law and becomes instead a mere human determination. As
human administrators of a perfect divine law, later Babylonian rabbis
may feel a certain compunction about anything that appears blatantly
unreasonable or simply untrue. But this had not always been the case,
as seen in earlier Palestinian rabbinic texts which employ bold legal
39 Why the natural intolerance for enactments contradicting Torah law should reassert itself in
the late third to early fourth century is difficult to say. However, it is interesting to note that at
approximately the time that rabbinic sages explicitly raise the concern that some taqqanot appear
to be contrary to the written Torah, a similar concern is expressed in the Roman world. In 315
C.E., Constantine decreed that rescripts contrary to the civil law were invalid. THEODOSIAN
CODE 1.2.2. Constantines decree is itself the result of internal constitutional developments in
Rome which led to the consolidation of all law-making in the hands of the emperor and thus, for
all practical purposes, a single source of law and legal authority.

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fictions, which depict rabbis upholding determinations that are contraryto-fact and which, in a few fascinating passages, explicitly acknowledge
that law and truth are not always and necessarily aligned.
For the first two centuries of the Common Era, rabbis of Palestine
not only talked the talk, they also walked the walk, both proclaiming
and exercising their authority in a bold manner. Given the hierarchical
and divine nature of Jewish law, the behavior of these sages was
remarkable. I have suggested that this behavior should be understood in
the context of the secular Roman legal system that pervaded their
environment, with its multiple sources of law and legal authority
operating independently and often at cross-purposes. But bold uses of
rabbinic authority sat uneasily in a system that was, after all, on its way
to becoming more clearly hierarchicalwith various sources of law
subordinated to an ultimate and divine source of authority. As later
fourth to sixth century rabbis, especially in Babylonia, became anxious
about the activity of their predecessors they honored them in word only,
but not in deed.

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